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United States v. City of Chicago

decided: March 15, 1989.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 73 C 2080, 80 C 5246 -- Prentice H. Marshall, Judge.

Posner, Coffey, and Manion, Circuit Judges.

Author: Posner

POSNER, Circuit Judge

Ann Erwin and other white female sergeants in the Chicago police force appeal from Judge Marshall's refusal to allow them to intervene in two suits attacking discrimination, and from his subsequent refusal to recuse himself from continuing to preside over the suits.

The first suit, United States v. City of Chicago, had been brought in 1973 by the Department of Justice against the City of Chicago. It charged discrimination against blacks, Hispanics, and women in both initial hiring and promotion to sergeant. Judge Marshall granted a final injunction in 1976 that required the City to hire and to promote to sergeant specified percentages of members of these groups. 411 F. Supp. 218 (N.D. Ill. 1976), aff'd, 549 F.2d 415 (7th Cir. 1977). The court retained jurisdiction (automatically--see United States v. Fisher, 864 F.2d 434, 436-37 (7th Cir. 1988)) to ensure compliance with the decree. We later ordered the court to modify it. See 663 F.2d 1354 (7th Cir. 1981) (en banc).

The second suit, Bigby v. City of Chicago, had been brought in 1980 by black male sergeants who claimed that the examination the City had used in 1977 to determine eligibility for promotion from sergeant to lieutenant was not job-related and had had a disparate (i.e., disproportionately adverse) impact on blacks. The case was assigned to Judge Marshall, who in 1984 ordered some immediate promotions of black sergeants and in addition directed the parties to work out a new test; jurisdiction again was automatically retained to assure compliance with the decree. The parties developed a new exam, which the City administered in 1987. Of the sergeants taking it 24 percent were black, 72 percent white, and 4 percent Hispanic. But only 17 percent of those who passed the exam were black. (The percentage that passed which was white was 79 percent, and Hispanic 4 percent.) The parties--that is, the black sergeants and the City--were not satisfied with this outcome and decided to change it, first by standardizing for "rater bias" (by assigning the same mean score to each group of exams graded by a different reader) and second by raising the mean score of the black and Hispanic sergeants who had taken the test to that of the white sergeants. As a result of these adjustments the percentage that passed that was black rose to 23.5 and the percentage Hispanic to 4.5 percent, even though the percentage Hispanic that had passed the test before the grades had been changed was the same as had taken it (4 percent). The adjustments in favor of blacks and Hispanics caused the percentage that passed that was white to fall to 71.5.

The City and the black sergeants went to Judge Marshall on March 14, 1988, for authorization to make promotions to lieutenant from a list based on the adjusted test results. Judge Marshall gave his okay on the spot, saying "all I am really interested in is whether the pool out of which the City promotes is a nondiscriminatory pool. I don't care how you select the 200 [the number of sergeants to be promoted to lieutenant]. You can have them arm wrestle or anything else, see." The promotions were made that same day. Forty-six days later, Ann Erwin and other white female sergeants who claim to have been denied promotion to lieutenant because of the post-exam leg-up for the blacks and Hispanics moved to intervene in both cases. Judge Marshall denied the motion as untimely. The City defends Judge Marshall's ground and adds another: intervention is unnecessary because the appellants have filed a separate federal suit against the City--Erwin v. City of Chicago, No. 88 C 6927 (N.D. Ill. 1988)--charging it with discrimination against whites in altering the test scores to favor minority sergeants. The City argues that the appellants can get damages in that suit and therefore don't need to intervene in either United States v. City of Chicago or Bigby.

The appellants challenge not only the denial of their motion to intervene but also Judge Marshall's refusal almost four months later to recuse himself after Mary Mikva--a lawyer for the City who had clerked for Judge Marshall back in 1980 when both cases were pending before him but claims not to have worked on either case during her clerkship--argued on the City's behalf against the motion to intervene. Judge Marshall ordered her off the case, but the appellants argue that this was not enough.

The appeal from the denial of the motion for recusal is implicitly conditioned on our reversing the denial of the motion to intervene, since unless and until Erwin and her group become parties they cannot appeal from any order in the proceeding other than the denial of that motion. Marino v. Ortiz, 484 U.S. 301, 108 S. Ct. 586, 98 L. Ed. 2d 629 (1988). Conditional or not, the appeal is barred by the appellants' failure to file a notice of appeal from Judge Marshall's order denying the recusal motion. Although the doctrine of pendent appellate jurisdiction allows certain orders not appealable in their own right to be reviewed in conjunction with closely related orders that are appealable, see, e.g., Illinois ex rel. Hartigan v. Peters, 861 F.2d 164, 166 (7th Cir. 1988); Patterson v. Portch, 853 F.2d 1399, 1403 (7th Cir. 1988), the doctrine has never to our knowledge been used to allow the appeal, without the filing of a notice of appeal, of an order made after the appealable order. When the nonappealable order precedes the appealable one, the doctrine sensibly excuses the appellant's failure to have filed a notice of appeal from the first order; for until the later order was entered, he had no basis for appeal. But a party who wants to appeal an order because of its relation to an order already under appeal can file a notice of appeal from the second order, and should do so, to give the appellee clear and early notice of the scope of the appeal. Cf. Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S. Ct. 2405, 2409, 101 L. Ed. 2d 285 (1988); Allen Archery, Inc. v. Precision Shooting Equipment, Inc., 857 F.2d 1176 (7th Cir. 1988) (per curiam). If appropriate, the appellant can ask us then to consolidate the two appeals, and can argue that the second appeal, if from an order otherwise unappealable, should be deemed pendent to the first.

Since we have been liberal in allowing mandamus to be used to review rulings on motions to disqualify judges, see, e.g., Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 712 (7th Cir. 1986); Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir. 1988) (dictum), we could construe the request in the appeal brief that we order Judge Marshall to recuse himself as a request that we issue a writ of mandamus. See 28 U.S.C. ยง 1651(a). But this would not help the appellants. They have already filed a petition for mandamus--and another panel of this court has denied it. See United States v. City of Chicago, No. 88-2617 (7th Cir. Sept. 7, 1988) (per curiam).

The appeal from the refusal of Judge Marshall to recuse himself must therefore be dismissed, and we turn to the appeal from the order denying intervention. That appeal is without merit insofar as intervention is sought in United States v. City of Chicago, the suit brought by the Justice Department back in 1973. Not only was that suit effectively concluded (as far as this case is concerned--for the decree was modified as recently as 1981 in respects not pertinent here) thirteen years ago, but it never had involved either promotion to lieutenant or discrimination against whites. The appellants regard it as an all-purpose vehicle for remedying any form of racial or sexual discrimination involving the Chicago police until the end of time, or more precisely until the decree entered in 1976 is vacated. Goodness know when that will be. The litigation was still very much alive in the fall of 1988, when Judge Marshall approved another race-adjusted promotion list, this one to sergeant. See United States v. City of Chicago, No. 73 C 2080 (N.D. Ill. Nov. 21, 1988).

We do not view equitable litigation, even of the "institutional reform" variety, in the same light as the appellants. Cf. Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1013, 1019-20 (7th Cir. 1984) (en banc). Judge Marshall is not, by virtue of having presided over one case or even many cases involving discrimination in the Chicago police force, the czar, seneschal, pasha, or ombudsman of that force. He is not required to reopen the decree whenever someone complains that the City is again discriminating. Decrees that vest federal district judges with supervisory powers over organs of state or local government are extraordinary, and the goal should be to wind them up as fast as possible rather than to perpetuate them indefinitely through liberal grants of petitions to intervene. The parallel to the interminable equity proceedings mocked in Dickens's novel Bleak House will not be missed by those of literary bent.

Our conclusion that intervention in United States v. City of Chicago was properly denied is reinforced by the contrast with the circumstances of the appellants' request to intervene in Bigby, a request based on Fed. R. Civ. P. 24(a)--intervention of right--rather than Fed. R. Civ. P. 24(b)--permissive intervention. Intervention of right is available when "upon timely application . . . the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." That is the claim of the appellants regarding intervention in Bigby (a claim whose merits we are about to examine). But as regards United States v. City of Chicago, all that the appellants argue is that their claim has "a question of law or fact in common" with claims in that case, the standard under Rule 24(b)(2). The argument is of doubtful merit unless "question of law or fact in common" is so broadly defined that any two cases of employment discrimination by the same employer (maybe any two cases of employment discrimination, period) could be said to involve a common question of fact or law. But even if meritorious, the argument would be merely an appeal to the discretion of the district judge, and Judge Marshall did not act unreasonably ("abuse his discretion," in legal jargon) in rebuffing the request, given what we said in the last paragraph.

The conditions for intervention as a matter of right are satisfied in Bigby, however. The subject matter of that suit is the 1987 lieutenants' examination. Erwin and her group did well enough on the exam to have, not a "vested" right, not a property right (see Bigby v. City of Chicago, 766 F.2d 1053, 1056-57 (7th Cir. 1985), another attempted intervention to challenge the Bigby decree, and United States v. City of Chicago, 869 F.2d 1033 (7th Cir. 1989)), but a confident expectation, of being promoted forthwith to the rank of lieutenant, with higher pay and greater fringe benefits. With respect to the Chicago police force the law of Illinois requires, "in all cases where it is practicable, that vacancies shall be filled by promotion," with promotions to be determined "on the basis of ascertained merit and seniority in service and [competitive] examination." Ill. Rev. Stat. ch. 24, para. 10-1-13. As a practical matter, the top 200 scorers on the 1987 lieutenants' examination were certain to be promoted, and this certainty created an expectation sufficient to qualify under Rule 24(a)(2); for the rule does not require that the intervenor prove a property right, whether in the constitutional or any other sense. See, e.g., Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135-36, 17 L. Ed. 2d 814, 87 S. Ct. 932 (1967); Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 530 (7th Cir. 1988); Harris v. Pernsley, 820 F.2d 592, 600-01 (3d Cir. 1987); Howard v. McLucas, 782 F.2d 956, 958-59 (11th Cir. 1986); Little Rock School District v. Pulaski County Special School Dist. No. 1, 738 F.2d 82 (8th Cir. 1984) (per curiam); Natural Resources Defense Council, Inc. v. NRC, 578 F.2d 1341 (10th Cir. 1978); EEOC v. American Telephone & Telegraph Co., 506 F.2d 735, 741-42 (3d Cir. 1974). The expectations of Erwin and her group were dashed when the City altered the test results in order to increase the percentage of blacks and Hispanics that passed and the district court approved promotions based on the altered results. That approval impeded the ability of the would-be intervenors to protect their interest in being promoted. Conceivably, the impediment is insuperable. The City has moved to dismiss the independent suit that Erwin and her group have brought against it, arguing that Judge Marshall's action in approving the promotion ...

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